UPDATE – 14 August 2015
We’re extremely pleased with the decision handed down by Justice Perram today. From the outset, we’ve never supported online copyright infringement but we couldn’t sit by and have our customers bullied by way of speculative invoicing. Today’s decision is a major blow to the speculative invoicing model and sets a precedent that future preliminary discovery applications will not follow this path.
We believe the issue of copyright infringement is best addressed by studios making their content available in a more affordable and timely manner. The rise of video streaming and its popularity in Australia to date supports this and we will continue to do what we can to ensure our customers can enjoy the content they love.
You can read more news related to the decision by searching the hashtag #iiDallas online.
iiNet, along with a number of other ISPs, recently fronted up in the Federal Court after refusing to voluntarily hand over the personal details of customers that Dallas Buyers Club LLC (DBC) and Voltage Pictures LLC (Voltage) suspected of infringing copyright in their film.
There’s been plenty of discussion on the case and the outcome has brought mixed emotions. While Justice Perram granted the rights holders access to the customer data, he displayed a high degree of caution, considering the impact for both the rights holders and consumers. He ordered a number of important safeguards to protect our customers from being intimidated or threatened, which we know has occurred elsewhere in the world with these companies.
We don’t support or condone copyright infringement but we couldn’t sit by and have our customers potentially bullied by the process of speculative invoicing. Our concerns regarding speculative invoicing are explained in a previous blog post.
What exactly does the judgment mean?
It’s now certain that shortly after 21 May 2015 iiNet will be ordered to hand over the name and physical address details of customers whose accounts are suspected of being used to infringe copyright.
While this isn’t the best case scenario, any subsequent letters that are issued by the rights holders will need to be approved by the Court before they are sent to customers. It is important to remember that the Court’s findings in this case do not mean that DBC and Voltage’s allegations of copyright infringement have been proven. Any such letter is still only an allegation until an infringement is proven or admitted.
The case generated a lot of interest amongst our customers and the community so we’ve got the answers to some of the common queries.
It means that iiNet will be ordered to hand over the name and physical address details of accounts suspected of being used to infringe copyright. The rights holders may then contact those account holders using an approved notification, but they must not use the details for any other purpose and cannot share the details with other parties.
iiNet will inform customers if their name is released to DBC and Voltage as a result of the Court’s orders. This will happen at the same time that details are handed over.
If you do receive a letter you may want to get legal advice. iiNet is working with a law firm that has offered to provide pro-bono services for any of our customers. More details will be provided when agreement is reached on that front.
It could be less than a parking ticket for single instances of infringement. The Judge did say that for single instances of infringement that damages could quite possibly be limited to the fee that would have been paid had the film been lawfully downloaded. This could be around $10.
“It may be true that for single instances of infringement the damages are likely to be modest and quite possibly limited to the foregone licence fee that would have been paid had the film been lawfully downloaded…” – Justice Perram
The rights holders have requested that the customer details are provided in May, however, a deadline has not yet been determined by the Court. In any event, there may be some delay between when the rights holders receive people’s contact details and when they send out letters. The rights holders have indicated that they may be selective when pursuing individuals.
The timing for the letter will also be affected by the Court approval process for the content of letters. We continue to be involved to ensure that the content of the letters is as fair and reasonable as possible.
Speculative invoicing has always been a major concern for us. Because rights holders need to submit a draft letter to the Court before they contact our customers, we expect that the risk of speculative invoicing practices will be avoided.
What’s more, we hope these conditions will prevent future speculative invoicing becoming common practice in Australia.
It is up to content owners whether they take this course of action in future. It is also up to the courts as to whether or not they will grant each ‘Preliminary Discovery’ order, which needs to be made before ISPs can release any details. Although there are any number of rights holders who can take action like this, given the process and outcome in this case we’re hopeful that the strict conditions will reduce the likelihood of similar applications being made in the future.
No. Changing your ISP now will not make any difference if your account has been linked with an alleged infringement already. The situation relates to past conduct (during the period of 2 April 2014 to 27 May 2014) and involves a number of internet companies as well as us.
‘Preliminary Discovery’ is a normal process for obtaining details prior to building a case for Court. Any party can lodge an application for consideration by the court on a case-by-case basis.
You should be aware, however that the Federal Government is changing the law to increase the ability for government agencies to access your information without a court order or warrant.
Why we took them on
We’re proud of the fact we took these guys on and while rights holders may claim a win on paper, we certainly achieved a result that will dent, if not break, the ‘business model’ of aggressive rights holders trying to bully the average consumer based on limited evidence of infringement.
Here’s what we consider as ‘wins on the board’:
We believe that these conditions may seriously disrupt the business case supporting speculative invoicing, enough to possibly discourage DBC, Voltage or other rights holders from taking similar action in future.
While we’re satisfied with the result and won’t be appealing the decision, there may still be implications for some customers.
If you do receive a letter you may want to get legal advice.
iiNet’s focus also turns to the industry copyright code scheme being developed by the Communications Alliance, in conjunction with rights holders and ISPs. The code, once approved, should supersede any current arrangements, but preliminary discovery will still be an option.
We’ll continue to do what we can to make quality entertainment more accessible to our customers. Our partnerships with Netflix and Fetch TV are examples of this and, as more opportunities become available in the future, we’ll be looking into them.
Photo credit: Evgeny Pavlov